Tag Archives: variances

2607 Ocean Blvd as of August 2018:Coastal Commission finds “substantial issue” — hearing to be scheduled

Latest News: A modified project was approved by the Planning Commission on December 7, 2017. After fruitless attempts to get the City Council to review the compliance of the Planning Commission’s decision with the City’s Local Coastal Program (LCP), a free appeal was submitted to the California Coastal Commission on January 21, 2018. A CCC determination of whether the City’s approval raised “substantial issues” of statewide significance was originally scheduled for the CCC’s March 7 meeting in the Oxnard Harbor District offices, Port Hueneme, but was postponed at the last minute. The determination was finally made as Item F22a at the August 10, 2018, meeting in Redondo Beach, where, in response to a new staff report, supporting exhibits and correspondence, the twelve commissioners voted unanimously to find “substantial issue” and directed staff to schedule a full hearing on the application at future meeting (date to be determined) .

Project Overview: This proposal for a multi-story replacement, with rooftop pool and living area, of the small existing single family residence on the bluff face adjacent to the China Cove Ramp in Corona del Mar has drawn considerable public interest.

Why We Are Watching: This is the first time the Planning Commission has been asked to review an application for a Coastal Development Permit. This particular application requests numerous “variances” from the City’s normal development standards (none of which are currently allowed for CDP’s) and, as approved, would cause a permanent loss of public views from the ramp, which are supposed to be protected by the City’s Local Coastal Program, as well as permanently destroy a currently undeveloped portion of the China Cove bluff face and fence off public access to the City land at the top of the property, between it and Ocean Blvd, which would otherwise have potential as a public view spot. Aside from these Coastal Act issues (the Coastal Act, though the local LCP, is supposed to protect, for all Californians, coastal views, coastal landforms and public access to them), it is regarded by many as an example of a disturbing trend toward “mansionization,” out of tune with the City’s existing character. It is also an example of people buying properties and expecting to get an easy approval from the City to build something on it not allowed by the existing City codes and policies.

Upcoming

Based on the outcome of the August 10, 2018, Coastal Commission meeting (see “Recent Events,” below) a full hearing on the application will be held before the CCC on a date to be announced.

Recent Events

September 17, 2018: CCC staff issues official notice that “substantial issue” was found at August 10 meeting. At the time of the notice, a hearing date for the appeal had not been set.

August 10, 2018: As Item F22a on the agenda for the CCC’s Friday meeting in Redondo Beach, the Commission voted 12:0 to find the appeal raised sufficient issues of statewide significance to merit the holding of a full hearing on the proposed development.

The hearing was confined to the question of whether the appeal raises sufficient “substantial issues” with Local Coastal Program compliance to require the scheduling of a full re-hearing of the project before the CCC at a future meeting. CCC staff recommended the Commission make that finding.

Comments to the CCC on them were invited by clicking the “Submit Comment” button following the Item 22a listing on the CCC agenda page, or by sending an email to SouthCoast@coastal.ca.gov with the subject line “Public Comment on August 2018 Agenda Item Friday 22a – Appeal No. A-5-NPB-18-0006 (Nicholson Construction, Newport Beach)“.

March 14, 2018: The “story poles (see December 7, 2018, below) have been re-installed. The reason for this is unknown.

March 7, 2018: A hearing on the January 22 appeal of the City’s approval of the Coastal Development Permit for 2607 Ocean Blvd was scheduled as Wednesday Item 11a (“W11a”) during the California Coastal Commission’s March 2018 meeting in Port Hueneme. As explained in the CCC’s Appeals FAQ, that hearing was to have focused on whether the appeal raises “substantial issues” of compliance with the City’s certified LCP. However, that hearing was postponed to a future date.

The CCC posting for March 7 consisted of a staff report recommending a finding of substantial issue, and supporting exhibits including a letter from the applicant’s representative opposing the appeal. If the Commissioners agree with CCC staff, the actual hearing on the modifications that would be necessary to bring the project into compliance with the LCP would occur at a later meeting. CCC staff also posted correspondence received in connection with the expected hearing, including a five-page letter from the City attempting to rebut each of the contentions raised in the appeal.

It is important to understand that the postponed Item 11a on March 7 was a procedural hearing to accept for future hearing, or deny, the appeal of the City’s approval of the permit for the development.

As such, the only issues under consideration on March 7 will be whether there is reason to doubt the City’s approval could be justified under its certified Local Coastal Program, and if there is a question of compliance, whether there is reason to believe the lack of consistency had detrimental effects of enough statewide significance to warrant review by the Coastal Commission.

Comments were invited to be submitted to the CCC by email using the “Submit Comment” button following the Item 11a listing on the CCC agenda page, or by sending an email to SouthCoast@coastal.ca.gov with subject line “Public Comment on March 2018 Agenda Item Wednesday 11a – Appeal No. A-5-NPB-18-0006 (Nicholson Construction, Newport Beach)“.

To be most helpful, comments should be based on an understanding of the CCC staff report, and focus on Coastal Actconsistency issues, not local zoning ones (purely local issues being things like whether the design or size matches that of nearby homes, or a statement residents don’t like it). For reference, the overarching goals of the Coastal Act are that all development in the Coastal Zone will, for the benefit of all Californians, and our visitors, be sized and sited to minimize impacts to public coastal views (from and to the ocean), coastal landforms and the public’s ability to freely access them. In reviewing the Newport Beach Planning Commissions decision on 2607 Ocean Blvd, CCC staff found possible issues of inconsistency with all three of these, and comments in support of those findings of inconsistency are especially helpful.

As an example, moving the LCP-required setback lines to allow the home to be built lower down the slope, closer to Way Lane (as the present one is), might be consistent with the Coastal Act goal of minimizing impacts to treasured public views. Relaxing the setback requirements to permit construction of home larger than the LCP allows, as the Planning Commission did, is not consistent, since it maximizes impacts to views and landforms.

February 23, 2018: With a hearing on the validity of the appeal scheduled for March 7 in Oxnard/Port Hueneme, CCC staff posts a report recommending a finding of “substantial issue.”

January 23, 2018: Notice of Appeal mailed by Coastal Commission staff, ordering the City to forward to them the materials on which the City’s decision was based.

January 21, 2018: appeal of City approval filed with California Coastal Commission.

January 9, 2018: City returns December 21 CDP appeal and the appeal of the City’s challenge to it, saying it will take no action on either.

January 6, 2018: City sends a “Notice of Final Action” to the Coastal Commission, triggering the opportunity for an appeal to them, since the project site is within the LCP appeal area (City approvals within that area can be appealed directly to the Coastal Commission if the City charges for local appeals, as it now appears it does).

January 2, 2018: City challenges and threatens to reject the December 21 appeal for refusal to pay a $1,536 filing fee, which was claimed due even though it was not mentioned in the notice of the hearing and (unlike for Zoning Code appeals, pursuant to NBMC Sec. 20.64.030.B.2) is not called out in the City’s LCP code. The claim was the CDP had to be appealed along with any other matters approved at the same hearing, under any other codes, again something not called out in the LCP code, nor even logical since the Coastal Commission routinely rules on the compliance of CDP approvals with an LCP independent of all other local approvals. The City’s offer to allow the appellant to add an appeal of the variance approval under Title 20 by January 6 was arguably itself illegal, since the original appeal made clear it was not appealing that, and the publicly announced time for filing a Title 20 appeal had ended on December 21.

December 21, 2017: After unsuccessful efforts to get a City Council member to call the Planning Commission’s December 7 decisions up for review, a private citizen filed an Appeal Application for the Coastal Development Permit portion of the approval, only, with the City Clerk, as allowed under Section 4.3 of Resolution 2075.

December 7, 2017: The application was heard as Item 5 at the Planning Commission’s December 7 meeting, for which a new staff report was posted. According to the staff report, by eliminating the elevator stop on the roof, the applicant is no longer asking for a deviation from the City and coastal height standards, but still seeks variances to reduce the required setbacks and increase the allowed floor area. It might be noted that heights in Newport Beach are measured from the underlying land, so even though it may not technically be a height variance, allowing the land owner to reduce the setback from Ocean Blvd allows him to build farther up the bluff face, and hence higher. Reducing the setbacks also, in staff’s view, increases the buildable area and allows the land owner to build bigger (that is, allowing more floor area, even without a variance). Also according to the staff report, as suggested by the Planning Commission on Nov. 9, the applicant installed “story poles” (connected by strings and flags representing various key rooflines) on the property from Nov. 27 to Dec. 1, illustrating how the proposed construction would impact views. Although the staff report continues to say the poles will disappear on Dec. 1, a later email from the applicant’s representative said the poles will be left in place through Dec. 8. Equally disturbingly, even though view impacts is a major concern with this project, the staff report contains no photos showing what the poles look like from various vantage points, and absolutely no computer simulations of how the actual building will affect existing views.Regarding the Coastal Development Permit issue, City staff clearly knows the City has no authority to grant variances from the recently adopted Local Coastal Program development standards, since they have asked the Coastal Commission for permission to add variance provisions to the LCP Implementation Plan. Coastal Commission staff has informed the City that adding those provisions would constitute a major amendment to the authority granted the City under the IP. To date, no hearings on the matter have yet been scheduled. Until language allowing variances from the LCP is certified, it seems the height of impudence for the City to be exercising an authority it has been clearly notified it has not been granted. At the hearing, staff said the Community Development Director has the authority to interpret the IP, and hence could “interpret” that it allows variances even if it doesn’t say so. After hearing testimony from the applicant and public, on a motion by Commissioner Bill Dunlap, the Planning Commission voted 4:2 (with Commissioners Weigand and Lowrey voting “no” and Vice Chair Zak absent) to approve the application, provided the “public view obstruction problems” could be solved, apparently largely by using clear glass for the screening around the rooftop pool deck. The final approval (PC Resolution No. 2075) was for 4,500 total square feet of floor area (including the garage, but not counting the livable roof area) on a lot where the maximum floor area allowed with the code-required setbacks would be 2,865 sf.

November 9, 2017: The application began to be heard as Item 2 at the Newport Beach Planning Commission’s November 9, 2017, meeting (see video), but was continued to December 7. Commissioners Kramer and Kleiman were inclined to grant the variance requests provided the elevator was moved back to the Ocean Blvd side of the property (where, although reaching exactly the same top elevation, it is technically less tall since its “height” is measured from a higher point on the slope. The remaining Commissioners appeared to have problems with the project and asked the applicant to come back with something better. Vice Chair Zak expressed the opinion that relaxing setback requirements should not serve as an excuse to use the resulting larger buildable area to justify a corresponding increase in floor area .

3200 Ocean Blvd as of September 2018:Council hearing, expected Sept. 25, has been CANCELLED

Latest news: Although this project was approved 5:2 by the Planning Commission (see video), that decision has been “called up for review” by City Council member Jeff Herdman. A new hearing before the Council was placed on their September 25agenda (see notice here), where was Item 18. However, according to a last minute posting, it is being “continued to a date uncertain.” In other words, the September 25 hearing has been CANCELLED.

Project Overview: Application to replace the existing 2,904 square foot single family residence at the corner of Larkspur and Ocean with a new 5,216 sq. ft. home (with a 2,748 sq. ft. basement not included in that total), on a lot where the both the City’s Zoning Code and its Local Coastal Program allow at most a 4,234 sq. ft. home.

Why We’re Watching: Many SPON members, and other residents, have expressed concern about the increasing “mansionization” of our community. Much of that change in character has been accomplished simply by filling lots to the very limits of the building envelope allowed by the City’s current zoning codes.

But in this case, the City was presented with a request to build something even larger than than the mansion-like maximum allowed by the code. To justify the proposed size at this address, the Planning Commission had to approve both increasing the building footprint by allowing construction 5 feet into a code-required 10 foot setback, and then multiplying even that larger than code-allowed building footprint by a floor area limit multiplier greater than the code allows for any other homes in Corona del Mar.

In addition to granting these deviations from the Zoning Code, this was the second time the Planning Commission had been asked to review an application for a Coastal Development Permit. Over the objections of the two Planning Commissioners who voted “no,” it again granted variances from the identical development standards about setbacks and floor area certified by the Coastal Commission in the Local Coastal Program for Newport Beach — but with no clear written authority to do so, and with the question of whether it has an implied authority currently on appeal.

Background:

Newport Beach has different standards for the amount of development allowed on commercial and residential lots. The maximum amount of floor area that can be built on a commercial lot is regulated by the Floor Area Ratio (FAR), which is the ratio of the floor area to the total area of the lot. On residential lots, construction is limited by the smaller “buildable” area determined by required setbacks from the property lines. The maximum floor area that can be built on a residential lot is set by the Floor Area Limit (FAL), which is the ratio of the floor area to the “buildable” area defined by the required setbacks. This both limits the bulk of the structures and ensures open space between them, both for fire access and to ensure homes have usable yards.

The Floor Area Limit in Corona del Mar (and on Balboa Island) is 1.5 times the buildable area.

The normal setbacks that determine the buildable area for single-family residential lots throughout Newport Beach are 20 feet in the front, 10 feet in the rear and 3 or 4 feet on the sides (depending on lot width). This lot, like all those along Ocean Boulevard, is required to maintain a slightly larger than normal 24 foot front setback. The 10 foot required rear setback is completely normal in size for Newport Beach, although because this is a corner lot, the rear yard is partially visible from the Larkspur “side” street, rather than being at a completely hidden interior position.

Variances to the development standards (per NBMC Sec. 20.52.090) are supposed to be difficult to obtain, and are supposed to be allowed only when due to some unusual physical peculiarity of the property not properly anticipated in the code, a strict application of the standards would deprive the owner of a right enjoyed by other property owners not suffering from that peculiarity.

In the present case, the only thing unusual about the property is that it is part of what was originally two long skinny lots paralleling Larkspur and spanning from Ocean Boulevard to an alley in the rear, as illustrated with the dashed red line in the diagram at left.

At some time in the past (the City doesn’t seem to have the map showing when!), the original lots were resubdivided into two squarer shaped lots, yielding the blue configuration, with the present property having a larger-than-normal frontage along Ocean Boulevard (at bottom) and a second lot facing Larkspur (at top).

Staff points out that as a result of the “realignment,” the code-required setbacks fill a relatively large fraction of the overall lot area, limiting (as the code is supposed to do) the size of the home that could be built on the lot.

To allow a larger home, City staff asked for the 10 foot rear setback to be effectively reduced to 5 feet (technically, the Planning Commission was not asked to actually change the setback, but rather to allow future construction to encroach 5 feet into the 10 foot setback required by the Council-enacted Zoning Code). This was said to be match the rear setback required of neighboring property owners. However, those neighbors have lots that back up to a 15 foot alley, which provides open space between the homes and reduces their need for a rear setback from 10 to 5 feet. That logic does not apply to 3200 Ocean Blvd, whose rear property line does not abut an alley.

Although the code-required setbacks would not really be changed by the Planning Commission action, City staff seems to treat them as if they were, as shown in the following Table 3 from the staff report, which shows how a reduction of the rear setback from 10 feet to 5 feet would increase the buildable area at 3200 Ocean Blvd. from 2,823 sf to 3,108 sf.

But even then, the column labeled “Max Floor Area (Buildable SF x 1.5) (SF)” is particularly misleading. For every line other than “3200 Ocean Blvd (Proposed)” the number listed in that column is 1.5 times the buildable area listed in the preceding column — which is the maximum allowed floor area (note: it doesn’t mean those lots are actually occupied by homes that large). But for “3200 Ocean Blvd (Proposed)” it is a larger number pulled out of the air.

The table makes it appear that if the new buildable area of 3,108 sf is multiplied by the standard maximum FAL of 1.5, the result is the owner’s proposed floor area of 5,216 sf. However, 3,108 x 1.5 = 4,662 sf — an increase of just 428 sf over the amount allowed with the normal setbacks .

It is not clear the Planning Commission understood they were approving an FAL of 1.7 (or 1.9 compared to the original buildable area) when all other properties in the vicinity are allowed a maximum of 1.5.

The only justification for approving 5,216 sf is that it provided the owner with an FAR similar to other homes in the area. But the size of homes is supposed to be limited by FAL, notFAR, and the FAL is supposedto limit lots with smaller buildable areas to a smaller FAR.

Deviating from the FAL to achieve a certain FAR makes no sense when FAL, rather than FAR, is the thing intended to be regulated by the code.The Issues
In summary, the issues associated with the 3200 Ocean Blvd application include the following:

The Planning Commission approval is counter to resident concerns about a trend toward larger homes in older neighborhoods.

In this case, the approved size goes not just to the maximum allowed by the Council-enacted codes, but significantly beyond it.

Variances are supposed to be granted only when there is something physically peculiar about a property — yet there is very little unusual about this lot.

The heirs’ understandable wish to maximize their property’s resale value by getting entitlements to build an oversized home on it has never been recognized as a valid reason for granting variances to the Council-enacted development standards. Nonetheless, to accommodate that wish:

A perfectly standard 10 foot rear setback — required throughout Newport Beach — was reduced to 5 feet even though there is nothing physically unusual about the property, other than it being a corner lot.

The applicant was then allowed to compute the permissible floor area by multiplying the resulting increased buildable area by a factor (1.7) arbitrarily and significantly larger than the factor (1.5) applied to all other properties in Corona del Mar.

This was justified by saying the relaxation of development standards was necessary to allow the property owners to achieve a ratio of floor area to lot size similar to their neighbors. However, FAR (floor area ratio) is a commercial standard that is supposed to be irrelevant to residential properties. The Council has purposefully regulated residential development based not lot size, but rather on the buildable area remaining after the code-required setbacks have been considered. Because the setbacks impact different lots in different ways, there is no reason to expect all residential lots to have the same, or even similar, FAR.

Although it is a problem common to corner lots in Newport Beach, despite the Ocean Blvd address, the “front” of this home — both existing and proposed — is actually along Larkspur, which per the City codes is regarded as a “side,” requiring (as seen in the setback diagram above) only a 4 foot setback from the sidewalk.

This allows the “front” of this home to be built without the normal front yard, breaking the line of home fronts on the rest of Larkspur and for those coming down Larkspur toward Ocean intruding into the public views of the sea — and at the corner where the preservation of the views would be most valuable.

Rather than reducing the code-required setbacks, to retain the character of the neighborhood the City codes could have required a 20 foot setback from both Ocean and Larkspur (since both act as “fronts”).

Thankfully, most of the proposed building would no be quite as close to Larkspur as the code allows, but much of it (including in the area near Ocean, most critical to public views) is close.

Since permanently changing setbacks would require a Council-approved amendment to the setback maps in the Zoning Code, it could be argued the Planning Commission didn’t technically change the setbacks, but only allowed the proposed building to encroach into the required 10 foot rear setback. If the setbacks didn’t change, then neither did the buildable area, and the ratio of the proposed above-ground floor area (5,216 sf) to the unchanged original buildable area (2,823 sf) becomes 1.85 — even farther above the maximum code-allowed FAL of 1.5.

The approval of this oversized home sets a worrisome precedent for other homeowners who might similarly seek to maximize the value of their property by obtaining approval to build an oversized home with reduced setbacks and a larger-than-allowed Floor Area Limit on lots, like this, with nothing particularly unusual about them.

In addition to raising concerns about deviations from the Council-imposed zoning standards, this property is in the Coastal Zone and the proposed construction required the City to approve a Coastal Development Permit under its state-certified Local Coastal Program, which promises strict adherence to the same development standards.

The City has asked for, but not yet received, permission to use “modifications” and “variances” to deviate from the standards it promised the Coastal Commission. At present, its authority to approve a CDP for development not adhering to those standards cannot be found in the LCP.

At an August 10, 2018, hearing, the Coastal Commission unanimously found concern about a similar action (involving the same builder) using variances to justify the granting of a CDP at 2607 Ocean Blvd.

Upcoming

September 25, 2018: As Item 18 on their agenda, the City Council was scheduled to reconsider the Planning Commission’s August 9 approval (see “Recent Events,” below). However, a last minute posting indicates the hearing will be “continued” to a future date, as yet unknown. The notice implies City staff and the applicant have finally decided it’s unwise to approve deviations from the standards stated in the Local Coastal Plan until the City has clear authority to grant such things. Exactly when they expect to get that authority, and how great its scope might be, remain unclear.

The new hearing is the result of a “call for review” by Council member Jeff Herdman, and the project should not be able to proceed until the hearing is held.

It is expected to be conducted in the same format as the PC hearing, of which a video is available.

In other words, City staff and the developer will be allowed a lengthy presentation after which members of the public will be invited to offer 3-minute comments pro or con.

Extended comments may be submitted in writing, prior to the hearing. They can be emailed to CityClerk@newportbeachca.gov referencing Item 18.

Should the City approve the Coastal Development Permit, a free appeal to the Coastal Commission by anyone who participated in the hearing, in person or in writing, is possible once the City notifies them of their final action on that portion of the approval — the main argument likely being that the City lacks authority to deviate from the development standards it promised in the LCP.

Construction cannot proceed without a CDP.

A denial of the CDP is not appealable.

Recent Events

September 11, 2018: City posts Notice of Hearing to be conducted before the City Council on September 25.

August 20, 2018: City Council member Jeff Herdman filed a “call for review” of the Planning Commission’s August 9 decision. A “call for review” requires City staff (pursuant to NBMC Chapters 20.64 and 21.64) to schedule a new hearing before the Council, and which the Council will render its own decision based on the same facts.

August 9, 2018: The application was heard as Item 3 at the Planning Commission’s August 9 meeting (see video). The Commission voted 5:2 to accept staff’s recommendation to approve the variances to the code and issue a Coastal Development Permit. Chair Peter Zak and Commissioner Lauren Kleiman appeared to vote “no” primarily out of concern that the City should not be approving CDP’s requiring deviations from the state-certified development standards of the City’s Local Coastal Program until the City’s authority to grant such deviations (a question raised in the 2607 Ocean Blvd appeal) had been resolved.